What happens if someone needs a new Will but has lost the mental capacity to make one? In England and Wales, the answer is usually a statutory Will, which is a Will made on the person’s behalf by the Court of Protection. This guide explains when a statutory Will may be needed, how the court approaches it, and why making a Will and Lasting Powers of Attorney while you still have capacity is far simpler.
Please note that A.D.E. Wills does not make applications to the Court of Protection. If you need a statutory Will, we can refer you to a solicitor who deals with these applications.
What is testamentary capacity?
Testamentary capacity is the mental ability needed to make or change a Will. The test comes from an 1870 case, Banks v Goodfellow, and is still applied today. Broadly, the person must understand:
- that they are making a Will and what it does
- roughly what they own
- who might expect to benefit, and the effect of including or leaving people out
Also, no disorder of the mind should be affecting their decisions about the Will. Capacity can fluctuate. For example, someone with early dementia may have good days and bad days, and may be able to make a Will at a time when they are well. In some cases a capacity assessment by a doctor or other qualified professional is sensible before the Will is signed.
What is a statutory Will?
When someone lacks testamentary capacity, they cannot make or change their own Will. However, the Court of Protection can authorise a Will on their behalf under the Mental Capacity Act 2005. This is known as a statutory Will.
The court does not simply approve whatever is put in front of it. Instead, it decides what is in the person’s best interests, taking into account:
- their past and present wishes and feelings
- their beliefs and values
- other factors they would be likely to consider if they were able to
- the views of family members, carers and attorneys or deputies
When might a statutory Will be needed?
For example, imagine a widower with advanced dementia whose only Will leaves everything to his late wife. Because she has died, his estate may pass under the intestacy rules, which might not reflect what he would have wanted. In a situation like this, a family member or his attorney might consider applying for a statutory Will.
A statutory Will may also be considered where:
- the person has never made a Will
- there has been a significant change in circumstances since their last Will
- there are concerns about whether an existing Will is valid
- the intestacy rules would produce an outcome that seems clearly unsuitable
How the application process works in outline
A statutory Will application is a formal court application, and it is usually handled by a solicitor. In broad terms:
- Permission. Some people, such as a property and financial affairs attorney or a deputy, can apply without first asking the court’s permission. Others need permission.
- Evidence. The court needs information such as any existing Will, a draft of the proposed Will, a family tree, details of the person’s assets, and medical evidence about their capacity.
- Fees. The court charges an application fee, and a further fee if there is a hearing. Fees change from time to time, so a solicitor will confirm the current amounts.
- Notifying people. The court will usually direct that certain people, such as those who might be affected, are told about the application.
- Approval and sealing. If the court approves the Will, it is signed and witnessed in the required way and then sealed by the court.
The process often takes several months. Also, there are legal costs, which may be paid from the person’s estate if the court agrees.
Frequently asked questions
Can a statutory Will be challenged?
Once the court has approved a statutory Will, it is difficult to challenge on the usual grounds, because the court has already considered the person’s best interests. However, an Inheritance Act 1975 claim may still be possible after the person’s death.
Are there alternatives?
Sometimes. For example, an attorney or deputy may be able to make limited gifts, and there may be other options depending on the circumstances. A solicitor can advise on what is suitable, and we can refer you to an appropriate professional.
Plan ahead while you have capacity
A statutory Will can be slow, costly and stressful for families. In contrast, making your own Will while you have capacity is straightforward, and it lets you decide for yourself who inherits.
It is also worth making Lasting Powers of Attorney. An LPA lets you choose people you trust to make decisions for you if you lose capacity in future. An LPA must be made while you still have capacity, and it can only be used once it has been registered with the Office of the Public Guardian, which currently takes around 8 to 10 weeks. So it makes sense not to wait. You can read more about LPAs on GOV.UK.
How A.D.E. Wills can help
If you or a family member are thinking about making a Will or LPAs, Edward can talk you through the process. Where there is any doubt about capacity, we will discuss it with you first. We only arrange an independent capacity assessment with your permission, and we tell you who the assessor is and what they charge before anything is booked.
Call 01865 507174 or email info@adewills.co.uk for a free initial chat. You can also read more about our Wills and Lasting Powers of Attorney.
